EPA: It’s not us; try them

Friday

Aug 24, 2012 at 2:00 AM

In a strongly worded filing, the Environmental Protection Agency says one of two lawsuits against it regarding the Cape’s wastewater should be dismissed, suggesting the state and Cape Cod Commission would be more apt targets.

Says state and Cape Cod Commission better targets

In a strongly worded filing, the Environmental Protection Agency says one of two lawsuits against it regarding the Cape’s wastewater should be dismissed, suggesting the state and Cape Cod Commission would be more apt targets.

The Aug. 20 filing seeks to dismiss the September 2011 suit filed by the Conservation Law Foundation and Coalition for Buzzards Bay that alleges the EPA failed to enforce section 208 of the federal Clean Water Act. The lawsuit claims the EPA did not require an updated Cape Cod Areawide Plan, which CLF said EPA is required to do.

That’s not so, according to the EPA, which argues that updates are discretionary, not required. In addition, EPA said that even if there were such a requirement, enforcement falls to the state, which has jurisdiction over such things.

In making its arguments, EPA puts both the state and Cape Cod Commission directly in the line of fire.

“If Plaintiffs believe that the State or the Commission have failed to fulfill requirements under CWA … they are free to attempt to pursue claims against those entities,” the memorandum in support of the motion to dismiss reads.

EPA argues that CLF and the Coalition are seeking to expand the regulatory authority granted to EPA under the Clean Water Act “through the back door of a federal funding statute, one that expressly requires the State, not EPA, to ensure compliance with State and local planning.”

The EPA filing also puts forward a number of other arguments against what it sees as the speculative nature of CLF’s claims, and does so with language hinting at a level of frustration with the process. EPA and CLF were engaged in a series of negotiation sessions from last fall until they fell apart in May of this year.

Arguing against claims that the state improperly funded projects from its federally-funded Sewer Revolving Fund as a result of an updated plan, the U.S. Attorney’s office, on behalf of the EPA, wrote: “Plaintiffs assert that the State is funding projects that are inconsistent with what an updated Areawide Plan should, in their view, say, not what the actual Areawide Plan does say. This is perhaps the definition of a speculative claim. It clearly is impossible to make a determination that Massachusetts has funded a project that is inconsistent with an Areawide Plan that has not yet been written. Indeed, Plaintiffs do not even try.”

Cape Cod Commission Executive Director Paul Niedzwiecki, whose agency was placed in the crosshairs, said this was expected.

“None of this is surprising,” Niedzwiecki said, adding that after the discussions fell through, it became an adversarial action.

He and Water Protection Collaborative Executive Director Andrew Gottlieb, along with special counsel for the county, sat in on mediation sessions between EPA and CLF last year until it became clear that the county’s participation was not necessary. As it appeared a settlement was in the works, a decision was made to withdraw from those talks. Despite the announcement of an agreement in principle, the EPA and CLF were not able to agree to terms.

“I think CLF should withdraw the suit and give us time to put together a plan that’s satisfactory,” Niedzwiecki said.

Niedzwiecki and Gottlieb were charged earlier this year with developing options on wastewater for the county commissioners to consider. Those are expected by the end of the year.

While not wanting to characterize the regional planning now under way as a Section 208 or areawide plan, Niedzwiecki said it is an attempt to move the issue of wastewater forward.

The county has weighed whether it made sense to join the suit on either side. Niedzwiecki is now of the belief that the county should do nothing on its own, but would not be surprised if one side or the other will enjoin the Commission in the suit.

Unaddressed in the filing is the initial complaint filed against the EPA in August 2010, which among other things seeks to expand the definition of point sources of pollution to wastewater treatment plants and residential septic systems.